(Amicus is the pseudonym of Advocate Mohammed Yousuf Has written extensively on Islam, Militancy and Current Affairs.)

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Thursday, June 21, 2012

PITY THE JUDICIARY AND PEOPLE

(JUNE 20, 2012)

Amicus

The President has taken it for granted that he enjoys immunity
without even formally claiming it in a court of law. He thinks and behaves as
if he is above the law.

The Speaker of the National Assembly declined to ruled
that as a result of the conviction of the Prime Minister a question had arisen
whether he has become disqualified from being a member of the Parliament. She
declined to send the matter to the Election Commission as per Art.63
(1)(g) (2).

The National Assembly passed resolutions reposing
confidence in a convicted Prime Minister and supporting the Speaker’s decision
not to send the matter of Prime Minister’s disqualification or otherwise as a
member of National Assembly to the Election Commission.

The Prime Minister did not consider his conviction
by the Supreme Court in the contempt of court case as a sufficient reason to
step down and had to be disqualified, on June 19, 2012, by a three member bench
of the Supreme Court with effect from April 26, 2012. Hence Pakistan does not
have a Prime Minister or Federal Cabinet.

A reporter enquired from Winston Churchill in the
midst of the Battle of Britain as to how the United Kingdom was faring during
those dark hours. Churchill responded by asking: “Are the courts working?”
“Yes”, replied the reporter. “Then Britain is fine,” said Churchill
confidently.

Nations have overcome extremely difficult, challenging
and threatening situations with healthy, strong and vibrant state institutions.

Although the history of Pakistan’s superior judiciary
in dealing with politico-constitutional matters had hardly anything to be proud
of, still the restoration of pre-November 2007 Supreme Court Judges in March
2009 created the hope that a new era of the supremacy of constitution and rule
of law would dawn in the country.

But what one witnessed since then was a game of
hide-and-seek between the superior judiciary and the executive. The executive successfully
dilly-dallied implementation of the Supreme Court’s directives in a number of
matters, as a result of which the confidence of the people began to erode in the
efficacy of the legal system even under restored superior judiciary.

Apparently, the Supreme Court was in a fix. If it
issued directives to improve governance in specific areas, it undertook the
risk of encroaching upon the domain of the executive. If it took up politically
sensitive cases, like that of May 12, 2007 mayhem, and passed orders, it feared
backlash from political forces.

It was determined to not take upon itself the blame
for derailing the democratic system.In
order to avoid outright clash of institutions, the Supreme Court moved
calculatedly and acted selectively on different issues.

It was a tight-rope walking between judicial restraint
and activism.

Simultaneously, their lordships understood that the
people were getting disillusioned with the Supreme Court and wanted results.
Even protracted proceedings had to come to an end.

The conviction of the Prime Minister in the contempt
of court case by the Supreme Court, and its observations and directives in the
missing persons’ case caused considerable embarrassment to the executive and
the military establishment respectively.

Although at times the Supreme Court appeared helpless
in getting its orders and directives implemented, its proceedings and their
lordships’ observations were widely reported in electronic media and contributed
to the shaping of adverse public opinion about the government and
military-controlled intelligence agencies.

And now we have this so-called bombshell in the form
of Malik Riaz’s
charges against, Doctor Iftikhar Arsalan the son of the Chief
Justice, that the latter is ‘a don who blackmailed him and his relatives into
giving nearly Rs.320 million apart from other benefits.’

The charges against Arsalan Iftikhar have, just by
virtue of his office, cast direct aspersions on the person of the CJP Iftikhar Muhammad Chaudhry who
holds the most respectful office, and the Supreme Court of Pakistan, which is
the most sacrosanct state institution.

If due to any reason one’s reputation is tainted, it
becomes extremely difficult to exercise moral authority.

There are reasons to believe that the Chief Justice
was informed by different persons about the activities of his son, including Barrister
Aitezaz Ahsan. He does not have excuse that he was completely unaware.

It may progressively be a challenge for Honourable
Iftikhar Muhammad Chaudhry to lead the Apex Court in future with same dignity
and sense of purpose, however, his decision of June 19, 2012 does show
otherwise.

That said, virtually the executive-legislature combine
and the judiciary are at loggerheads on more than one issue.The bars are on the streets. What if the
lawyers get divided into hostile camps or cracks appear within the benches?
Whither the respect of black coats and robes if this happens?

Yet another casualty of Arsalan Iftikhar affairs is
the media. Some anchors are virtually at each other’s throats. Those who used
to deliver lectures from high pedestals are rubbing their noses in the dust.
The people are aghast to learn that those who gave lofty sermons had their
price tags.

Apparently Malik Riaz’s allegations aimed at not only disgracing
the Chief Justice but bringing into disrepute the august institution of the
Supreme Court, at a time when the Supreme Court was seized of the matters of
the National Assembly Speaker’s decision not to send the question of the Prime
Minister’s likely disqualification to the Election Commission (hereafter
referred to as the Speaker’s ruling case) and the picking-up and killings of
Baloch nationalists allegedly at the hands of the FC.

The people had a rude shock when they came to know of
Malik Riaz’s charges against Arsalan Iftikhar. The Chief Justice immediately
took suo- moto notice of the matter, but it seemed that the damage to his
reputation had been done. There came reports that some individuals, including
Barrister Aitzaz Ahsen, had cautioned the Chief Justice about the activities of
Arsalan Iftikhar months before Malik Riaz’s ‘disclosure’ but the Chief Justice
had ignored their advice.

The airing of the controversial footage of conversation
between anchors (Mubashir Luqman and Meher Bukhari) and Malik Riaz, recorded
before the beginning and during the commercial break of Malik Riaz’s interview
to Dunya channel, came as a God-sent gift to the Chief Justice and the Apex
Court.

Most of the other channels projected the interview as
‘fixed’ with ‘planted’ questions solely meant to discredit the Supreme Court.
This was like reading too much in the episode but the Chief Justice got
something to fall back upon.

As things stand today the Supreme Court has directed
the Attorney General to investigate the charges against Arsalan Iftikhar. It has
called the above mentioned interview of Malik Riaz a conspiracy against the
judiciary without clearly pinpointing who was its author.

It was certain that the Supreme Court will expedite the
proceedings in the Speaker’s Ruling Case and deliver its adverse judgment
within days and that has come to pass.

Unusually the Supreme Court Judges watched the controversial
footage of Dunya TV in the presence of media and the same was telecast from
different channels.

Although internally the lawyers are divided and
confused, they are on the streets condemning what they term as an attempt to
malign the Chief Justice and an assault on the independence of the judiciary.
There is an effort to enact the scenes of 2007 when the Chief Justice was
removed by a military dictator, yet as of now the same enthusiasm is lacking.

The ruling coalition led by the PPP has declared the
action of the Speaker of the National Assembly in not sending the matter of the
Prime Minister’s disqualification to the Election Commission as justified and
has declared that the government would investigate the Arsalan Iftikhar affair
to find out the truth.

No doubt in a country like Pakistan one cannot rule
out the possibility of a conspiracy against the apex court hatched by the
quarters that are not happy with the present Chief Justice and have
reservations about some of the orders and directives of the Supreme Court.

That said, conspiracies usually take place when there
are some weaknesses in those against whom they are aimed at. What may come next for the Chief Justice, may be
a matter of conjecture but there is lot of room for it and potential too.

The questions arise: First, what if more allegations
with incriminating evidences, including videos and audio recordings, against
Arsalan Iftikhar come to light? Secondly, will the things be the same again even
if without further damage the dust settles down?

A dispassionate analysis of the crisis would suggest
that the maintenance of the moral authority of the Supreme Court is of
paramount importance. Prima facie the
Chief Justice could not have been completely ignorant of his son’s activities,
especially when the Chief Justice’s other family members had, allegedly, also
enjoyed lavish stay in London.

The Supreme Court is an august body. It does not look
nice if it indulges in populism or politicking, directly or through bar
councils and media.

The impression that their lordships have started
enjoying projection on electronic media, often their remarks during the
proceedings appear as if they are meant for public consumption, is not going
well with the people.

We know for certain that within the bar there are
lawyers loyal to different political parties and if the crisis continues, it is
very likely that bars may get divided into hostile camps. Within the benches
also there is no surety that all judges consider Chief Justice above reproach.

In due course cracks may appear within the benches
also. Pakistan cannot afford the casualty of another state institution. The
judiciary should not get polarized or politicized.

It is also important that the Supreme Court should do
some introspection to see if it has come to the expectations of common man in
other respects. As an institution, the Judiciary has failed to dispense cheap
and prompt justice. The backlog of cases casts a bad impression. The High
Courts have not fulfilled their supervisory role over their respective
subordinate courts properly.

The rampant corruption, miscarriage of justice,
delayed and poor quality of judgments at lower levels make a mockery of the
judicial system in Pakistan.

It is time the superior judiciary gave more importance
to the hardship of common people and reform the whole system instead of
focussing only on high profile cases.

The people have had overdose of politics, they yearn
for solution of their everyday problems which have direct impact on their
lives. This is the essence of what Churchill had meant when he said: “Then
Britain is fine.”

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